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Sanders v. Leavitt8/31/2001
iminal case, if the court determines that a motion made or appeal taken under these rules is either frivolous or for delay, it shall award just damages, which may include single or double costs, as defined in Rule 34, and/or reasonable attorney fees, to the prevailing party. The court may order that the damages be paid by the party or by the party's attorney.
(b) Definitions. For the purposes of these rules, a frivolous appeal, motion, brief, or other paper is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law. . . .
(c) Procedures.
(1) The court may award damages upon request of any party or upon its own motion.
Plaintiff's appeal of the dismissal of the attorney defendants was not grounded in fact, not warranted by existing law, nor based on a good faith argument to extend, modify, or reverse existing law. Plaintiff's brief offers only a general conclusory statement that attorneys owe a duty to their clients, accompanied by two cases cited as authority. Neither case, however, is of any help in delineating the duty an attorney owes to members of a class he or she represents. Plaintiff offers no authority or argument that the attorney defendants, in representing the class of which Breanna was a member, assumed a duty to ensure she received protection from battery by third persons and personal medical care. Even further, when invited to articulate a duty or at least a theory at argument, counsel was unable to do so. In short, plaintiff's appeal of the dismissal of the attorney defendants was a waste of time and resources of all concerned.
For these reasons we award reasonable attorney fees incurred on appeal to the attorney defendants. These shall be paid by plaintiff's attorney, not plaintiff. See Utah R. App. P. 33(a). We remand to the district court solely for a determination of the proper amount.
Affirmed.
Chief Justice Howe and Associate Chief Justice Russon concur in Justice Wilkins' opinion.
Having disqualified himself, Justice Durrant does not participate herein; Second District Judge W. Brent West sat.
DURHAM, Justice, concurring in the result:
I feel constrained by stare decisis to join in the result of Part B of the majority's analysis. I wish to note, however, what I consider to be an ongoing problem created by this court's construction of section 63-30-10(1)(b), one that I believe should be addressed by the legislature. In my dissent in Taylor ex rel. Taylor v. Ogden City School District, 927 P.2d 159, 165-67 (Utah 1996), I detailed my conclusion that the language and legislative history of section 63-30- 10(1)(b) strongly suggest that it was intended to retain immunity only for an assault or battery committed by a state employee, and that Ledfors v. Emory County School District, 849 P.2d 1162 (Utah 1993), was wrongly decided. I also noted that the Utah Senate made an effort to overrule the Ledfors construction in 1995:
Senator Robert F. Montgomery introduced Senate Bill 94, which would have changed section 63-30-10 to read; "Immunity from suit of all governmental agencies is waived . . . except if the injury arises out of: . . .
(3) assault or battery, except that this exception does not apply when: . . . (ii) the assault or battery was not committed by an employee of a governmental entity." Id. The Senate passed this amendment on February 17, 1995, with eighteen voting for and nine voting against the bill and two Senators absent. Utah Senate Journal, 51st Utah Leg., Gen. Sess., 550-51 (Feb. 17, 1995). The House, however, read the bill
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